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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

: CRIMINAL NO. 04-506-2

V. :

:

KEVIN JENKINS :

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT KEVIN JENKINS

POST TRIAL MOTIONS

Kevin Jenkins, through his undersigned counsel, hereby moves for a Judgment of

Acquittal, for Arrest of Judgment or, in the alternative, for a New trial, and in support

avers the following:

I. JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29 OF THE

FEDERAL RULES OF CRIMINAL PROCEDURE

Federal Rule of Criminal Procedure 29 requires that, upon a motion by a

defendant, a court shall enter a judgment of acquittal “if the evidence is insufficient to

sustain a conviction of such offense or offenses.” Fed. R. Crim. P. 29(a). In evaluating

the sufficiency of evidence to support a guilty verdict, the court must “review the

sufficiency of the evidence “in the light most favorable to the government, and will

sustain the verdict if any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” United States v. Pritchard, 346 F 3.d 469, 470 (3d

Cir. 2003) (quoting United States v. Hodges, 321 F .3d 429, 439 (3d Cir. 2003) (citing

United States v. Smith, 294 F 3.d 473, 478 (3d Cir. 2002).

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A Court will not re-weigh the evidence, nor reassess the credibility of the witness.

See United States v. Casper, 956 F .2d 416, 421 (3d Cir. 1992). However, convictions

are to be reaffirmed on appeal only if “the verdict is supported by substantial evidence.”

United States v. Coyle, 63 F .3d 1239, 1243 (3d Cir. 1995). In United States v. Gibbs,

190 F .3d 824,829 (3d Cir. 1999), the court held that to prove a conspiracy, the

government must establish a unity of purpose between the alleged conspirators, an intent

to achieve a common goal, and an agreement to work together toward that common goal.

See also United States v. Robinson, 167 F .3d 824, 829 (3d Cir. 1999). Though the

government may prove these elements entirely by circumstantial evidence, see United

States v. Kapp, 781 F .2d 1008, 1010 (3d Cir. 1986), each element of the offense must be

proved beyond a reasonable doubt. See United States v. Samuels, 741 F .2d at 573-574.

Defendant Kevin Jenkins moves for Judgment of Acquittal under Rule 29 on the

grounds that the evidence was insufficient to convict him of conspiracy to commit

carjacking and using a firearm in furtherance of a conspiracy to commit carjacking.

A. Elements of Conspiracy to Carjack

Four elements must be satisfied in order to convict an individual for the crime of

carjacking. In order to find a defendant guilty of carjacking, the government must prove

beyond a reasonable doubt that 1) the defendant took a motor vehicle from the person or

presence of another; 2) by force and violence or intimidation; 3) with intent to cause

death or serious bodily harm; and 4) that the motor vehicle had been previously

transported, shipped, or received in interstate or foreign commerce. 18 U.S.C. §2119.

In order to convict a defendant of conspiracy to commit carjacking under 18

U.S.C. §371, the government is required to prove beyond a reasonable doubt that 1) two

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or more persons agreed to commit a carjacking; 2) the defendant, knowing the unlawful

purpose of the plan, willfully joined in it; and 3) one of the conspirators during the

existence of the conspiracy knowingly committed at lease one overt act in furtherance of

the conspiracy. United States v. Davis, 183 F.3d 231 (3d Cir. 1999). For the jury to

convict a defendant of conspiracy to carjack, the jury must establish that at any time, the

specific object of the conspiracy was to carjack. To be convicted of conspiracy, the

conspirator must intend to further the endeavor which, if completed, would satisfy all of

the elements of the substantive criminal offense, but it suffices that he adopt the goal of

furthering or facilitating the criminal endeavor. Salinas v. U.S. 522 U.S. 52 (1997).

B. The evidence was insufficient on the intent element of carjacking, because the

government did not prove that the prohibited intent existed at the time of the

commission of the act constituting the offense of taking control of the victim’s car.

A defendant cannot be convicted of conspiracy to commit a crime unless the

government proves at least the degree of criminal intent necessary for the underlying

substantive offense. United States v. Feola, 420 U.S. 671 (1975), see also United States

v. Alston, 77 F.3d 713 (3d Cir. 1996). Conviction for conspiracy requires the same level

of mens rea as required for conviction of the underlying offense. In the federal

carjacking statute, the government is required to prove beyond a reasonable doubt that the

defendant would have at least attempted to seriously harm or kill the driver if necessary

to steal the car. United States v. Holloway, 119 S.Ct 966 (1999).

The government failed to prove the element of intent to cause “death or serious

bodily injury,” that is a required element of the carjacking statute. The carjacking statute

essentially is aimed at providing a federal penalty for a particular type of robbery. The

statute's mens rea component thus modifies the act of 'tak[ing]' the motor vehicle. It

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directs the factfinder's attention to the defendant's state of mind at the precise moment he

demanded or took control over the car 'by force and violence or by intimidation.' If the

defendant has the proscribed state of mind at that moment, the statute's scienter element

is satisfied. United States v. Holloway, 119 S.Ct 966 (1999).

The record reflects that the defendant’s tied the victims up, and told them they

would come back for them if the victims called the police. At no time did they threaten

death or serious bodily injury. N.T. 5/9/06 At 2-13. Nor is there a scintilla of evidence in

the record that the defendants at any time had the intent to cause either death or serious

bodily injury. The defendant’s then left the bedroom and did not come back. Id. At the

precise time that defendants took the vehicle, the victims were tied up inside of their own

home. The defendants were outside of their proximity at the time the vehicle was taken.

Id. The evidence was therefore insufficient to show that at the time of taking control of

the vehicle, the defendant had the conditional intent to cause death or serious bodily harm

to the victims. Furthermore, there is no evidence whatsover that in the planning stages of

the deciding to take a car that death or serious bodily injury to the victims was an option.

The government failed to prove at least one element required to find a defendant guilty of

conspiracy to commit carjacking. Accordingly, the conviction must be reversed and

remanded for entry of a judgment of acquittal.

C. Substantive Elements do not need to be fulfilled for Conspiracy to Occur

The Defendant is not arguing that the elements of the substantive crime must be

fulfilled in order for defendant to be found guilty of conspiracy. It is possible to find a

defendant guilty of the conspiracy without finding that the defendant successfully

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completed the underlying offense. The jury found the defendant in this case guilty of

conspiracy to robbery without finding defendant’s guilty of actual robbery charge. N.T.

5/10/06 at 3-63. In this case, the planned robbery was aborted. N.T. 5/8/06 at 1-74.

The jury considered each of the necessary elements of robbery when determining

the guilt of Jenkins regarding the conspiracy to commit robbery. Defendants were unable

to complete the actual robbery due to the presence of the authorities at the bank. Id. It

would appear that the jury concluded that the defendants did however have the plan to

rob in place, and had fulfilled the elements of conspiracy to commit robbery.

The elements of the underlying offense apply to conspiracy of the offense. In

order for the jury to find defendants guilty of conspiracy to carjack, they must have

considered each of the substantive elements. The elements of conspiracy to carjack are

the same as the elements of carjacking. Any other interpretation of the statute would

make conspiracy to carjack the same as conspiracy to rob a car. Defense counsel submits

that it is the specific elements of carjacking that make conspiracy to carjack an entirely

separate offense from conspiracy for robbery of any other type.

Obviously the defendant could have been found guilty of conspiracy to commit

carjacking if all of the elements of that charge had been met and the plan was aborted.

For instance if the police arrived and the car was not taken, or defendants went to the

location and the car was not present or they went to the location and the car was there and

taken but the victims were not present. This would be similar to the conspiracy to commit

bank robbery conviction that was aborted by police presence although the government

presented evidence that the necessary elements of the conspiracy were met.

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The jury considered all of the elements of the substantive charge of carjacking

and found the defendant not guilty of that offense. Due to the reasons listed below in the

Rule 33 motion, they were not given the correct instructions on the conspiracy to commit

carjacking charge.

D. Firearm charge elements not met

The government failed to prove the defendant guilty of conspiracy to commit

carjacking. Accordingly, the conviction for the firearm must be also be reversed and

remanded for entry of a judgment of acquittal.

II. MOTION FOR A NEW TRIAL PURSUANT RULE 33 OF THE FEDERAL

RULES OF CRIMINAL PROCEDURE

Under Rule 33, this Court may "vacate any judgment and grant a new trial if the

interest of justice so requires." Fed. R. Crim. P. 33

A. Verdict Against Weight of the Evidence

Federal Rule of Criminal Procedure 33 provides that “on the defendant’s motion the court

may grant a new trial . . . if the interests of justice so require.” A verdict against the

weight of the evidence is a permissible reason to grant a new trial under Rule 33. United

States v. Brennan, 326 F.3d 176, 189 (3d Cir. 2003). A district court can order a new

trial based on the verdict being contrary to the evidence. Only if the court “believes that

‘there is a serious danger that a miscarriage of justice has occurred-- that is, that an

innocent person has been convicted.’” United States v. Johnson, 302 F.3d 139, 151 (3d

Cir. 2002) (internal quotations omitted). Unlike an insufficiency of the evidence claim

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under Rule 29, in which the district court views the evidence favorably to the

government, a district court evaluating a Rule 33 motion instead exercises its own

judgment in assessing the government’s case. Brennan, 326 F.3d at 189. Although

motions for a new trial based on the weight of the evidence are not favored, and are to be

granted sparingly, and only in exceptional cases, Gov’t of Virgin v. Derricks, 810 F.2d

50, 55 (3d Cir. 1987), Defendant contends that the guilty verdict in this case on the

conspiracy to commit carjacking and using a firearm in furtherance of a conspiracy to

commit carjacking. was a miscarriage of justice and the verdict was against the weight of

the evidence.

B. The Court Erred by not instructing the Jury on the Substantive Elements of

Conspiracy to Commit Carjacking.

The judge must instruct the jury as to the elements of the crime of conspiracy, in

addition to the elements of the substantive offense involved in the conspiracy. United

States v. Yasbin, 159 F.2d 705 (3d Cir. 1947). In Yasbin, the trial judge charged the jury

on the elements of the crime of conspiracy, but did not instruct them on the elements of

the substantive offense involved in the conspiracy, and his subsequent conviction was

reversed. Id. In this case, the jury sent two notes asking for clarification of the elements

of conspiracy to commit carjacking. The trial judge erred by not instructing the jury as to

the substantive elements of a conspiracy to carjack. N.T. 5/10/06 at 3-61.

If jury instructions omit an element of the offense, constitutional error results

because the jury has been precluded from finding each fact necessary to convict a

defendant. Martinez v. Borg, 937 F.2d 422, 424 (9th Cir. 1991). For example, in United

States v. Rawlings, 73 F.3d 1145, 1149 (D.C.Cir. 1996), the defendant was convicted of

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possessing an unregistered firearm. When instructing the jury, the judge placed more

importance on one element of the offense than the others. The Court of Appeals held that

the judge's instruction was plain error, writing that, "Insofar as that instruction purported

to establish a hierarchy among the offense elements, it was erroneous."

The Court further stated that the government was required to prove each element

of the offense beyond a reasonable doubt and that no single element was more or less

important than any other or required more or less proof. See also, United States v. Small,

472 F.2d 818 (3d Cir. 1972), holding that when the instructions fail to specify every

essential element of the crime, the failure constitutes plain error which can be considered

on appeal even though no objection was made at trial; United States v. Russell, 134 F.3d

171, 181 (3d Cir. 1998), holding that the failure to instruct on an essential element of the

offense constitutes plain error; United States v. Stansfield, 101 F.3d 909 (3d Cir. 1996),

holding that omission of essential element of the offense from the jury instructions

"usually will be obvious error,"; Government of Virgin Islands v. Brown, 685 F.2d 834

(3d Cir. 1982), holding that the omission of an essential element of an offense in the

charge to the jury ordinarily constitutes plain error.

In this case, the jury sent a note to the Court on two different occasions regarding

the elements necessary to find the defendant guilty of conspiracy to commit carjacking.

The first note asked if the elements to commit carjacking under the statute also apply to

conspiracy to commit carjacking. When the court answered that they did not apply, the

jury then asked what elements they would need to consider in determining whether or not

the conspiracy to carjack existed. The court failed to properly answer their inquiry. The

Jury submitted the following questions to the Court:

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Question 1: Ref. to Count 4: Do the four elements of carjacking apply to

conspiracy to commit carjacking?

Question 2: If we find Jenkins not guilty on Counts 4, 5 or both can he still

be found guilty on Count 7?

N.T. 5/10/06 at 3-50

The Court incorrectly answered the Jury’s question. When the court answered that the

four elements of carjacking do not apply to conspiracy to carjack, the Jury then asked

another question:

JURY: Ref. to the answer you just gave us – if the elements of carjacking

do not have to be met in Count 4 – What are the elements we need to

consider?

The Court failed to provide an answer. N.T. 5/10/06 at 3-61.

Jury instructions must leave the jury no doubt as to the circumstances under

which the crime can be found to have been committed. In a criminal case, the trial court

has a duty to charge the jury on all essential questions of law, regardless of whether

requested. U.S. v. Levy, 153 F.2d 995 (3d. Cir. 1946). In this case, the jury asked a

question regarding the elements to be considered for conspiracy to carjack. When the

court attempted to answer their inquiry, they appeared to have “blank stares.”

THE COURT: “All right, let me see if I can make this a little clearer. I’ll

read you the question. “In reference to the answer you just gave us, if the

four elements of carjacking do not have to be met in Count 4, what are the

elements we need to consider to reach a decision?” As you know, Count 4

is the conspiracy to commit carjacking, so if you find there’s a conspiracy

to commit carjacking even though - - you can find a conspiracy to commit

the carjacking, even though some of the elements of carjacking have not

been met for carjacking. But if you find that the object of the conspiracy

was to commit a carjacking, even though he didn’t accomplish some of the

ends, you can still find him guilty of conspiracy to do it. Do you

understand that? Everyone is giving me a blank look.

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JUROR: There’s a very layman’s question I think we all have, but we’re

not sure how to ask it.

JUROR: Are we allowed to ask questions?

COURT: Well, no. You can send me another note. But the point is you

don’t have to accomplish the elements of the substantive crime, which in

this case it’s alleged is carjacking, to be guilty of conspiracy to commit

that crime if that is what you intended to do.

N.T. 5/10/06 At 3-61.

The jury returned 45 minutes later with a guilty verdict. Id. At 3-63. The defendant

submits that the jury did not understand the Court’s answer to their question, and further,

that the Court provided an incorrect answer to their questions.

Trial Court’s instructions must be clear, accurate, complete and comprehensible,

particularly with respect to essential elements of the alleged crime that must be proved by

the Government beyond a reasonable doubt. U.S. v. Clark, 475 F2.d 240 (2d Cir. 1973).

In Clark, reversal was required for plain error where instruction lumped together the two

distinct elements of the crime charged, and failed to adequately define the crime, so that

appellate court could not ascertain the basis upon which the jury reached its conclusion of

guilt. Id.

Courts have held that the failure of the district judge to set forth clearly one of the

essential elements of an offense creates such a significant flaw in the trial process as to

require reversal of any convictions obtained for the offense involved. Smith v. Horn, 120

F.3d 400 C.A.3 (Pa.) 1997.

The defendant respectfully submits that the Court in this case incorrectly advised

the jurors that they were not required to consider the elements of the underlying offense

when determining if a conspiracy occurred.

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CONCLUSION

For the foregoing reasons, Defendant Kevin Jenkins respectfully requests that his

Motion for Judgment of Acquittal be granted, or, in the alternative, that a new trial be

granted .

Respectfully submitted,

2865

___________________

Peter A. Levin

Attorney for Appellant

I.D. #09221

2001 Hamilton Street

Suite 501

Philadelphia, PA 19103

(215) 563-3454

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CERTIFICATE OF SERVICE

Peter A. Levin, Esquire, hereby certifies that a true and correct copy of the

within Motion has been served upon by First Class Mail to:

Jennifer Chun, Esquire

Assistant United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

2865

___________________________________

PETER A. LEVIN, ESQUIRE

Dated: 8/24/06

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